Detrich v. Metropolitan Street Railway Company
| Decision Date | 21 February 1910 |
| Citation | 127 S.W. 603,143 Mo.App. 176 |
| Parties | ELIZABETH DETRICH, Respondent, v. METROPOLITAN STREET RAILWAY COMPANY, Appellant |
| Court | Kansas Court of Appeals |
Appeal from Jackson Circuit Court.--Hon. Wm. B. Teasdale, Judge.
REVERSED AND REMANDED.
Judgment reversed and cause remanded.
John H Lucas and Ben T. Hardin for appellant.
(1) Plaintiff's first instruction was erroneous. It went beyond the issues made by the pleadings, and did not limit the "highest reasonably practical degree of care" to the specific negligence charged in the petition; it covered the entire field of negligence. Beave v. Transit Co., 212 Mo. 331; Black v. Railway, 217 Mo 672; Kirkpatrick v. Railway, 211 Mo. 68; Davidson v. Transit Co., 211 Mo. 320; Roscoe v Railway, 202 Mo. 576; Orcutt v. Century Bldg., 201 Mo. 443; Vanhorn v. Transit Co., 198 Mo. 481; McGrath v. Transit Co., 197 Mo. 97; Allen v. Transit Co., 183 Mo. 411; Magrane v. Railway, 183 Mo. 119; Fuchs v. St. Louis, 167 Mo. 620; Chitty v. Railway, 148 Mo. 64; Bartley v. Railway, 148 Mo. 124.
Holmes & Page, Frank P. Walsh and E. R. Morrison for respondent.
Plaintiff's first instruction was a definition and did not submit general negligence or any acts of negligence to the jury.
This is an action for damages on account of personal injury alleged to have been inflicted upon plaintiff by reason of the negligence of defendant's servants in charge of its street car upon which she was a passenger. The judgment in the trial court was for the plaintiff.
A statement of the nature of the mishap and the injuries, as well as the specific negligence charged, can be well understood from the allegations of the petition. After alleging defendant's incorporation for the purpose of operating a cable street railway in Kansas City, it stated that: "Said lines of cable street railway above referred to are so constructed that the cars running on the street railway tracks are drawn by means of an endless wire cable extending and running through an underground conduit, to which cable the cars are attached by means of an appliance known as a 'grip'; that the wire cable running in the conduits on Twelfth street runs underneath the wire cables running in the conduits on Walnut street, so that in order that the cars running on the Twelfth street tracks may pass over and across Walnut street it is necessary that the Twelfth street wire cable be released from the grip on the Twelfth street car; otherwise the said grip would be brought into collision with the machinery and appliances underneath the ground at said street railway crossing and the cars brought to a sudden and violent stop.
"Plaintiff further states that on the evening of August 1, 1903, she was a passenger on a west-bound car on said Twelfth street line, having become such passenger at a point east of Walnut street and having paid the customary fare of five cents for her passage on said car; that she was seated on the front seat of the grip car, it being the forward car of the two cars composing the train of cars on which she was a passenger; that the grip attached to said wire cable on said Twelfth street car was being operated by and in charge of a servant and employee of the defendant company, commonly called a gripman, and when said grip car approached near to the said street railway crossing at Twelfth and Walnut streets in said city, the said gripman negligently and carelessly failed to release the said wire cable from the grasp of the said grip, and the said defendant company negligently and carelessly permitted the machinery and appliances of its said street railway at said street railway crossing to be and become out of proper condition and repair, so that the said street railway was so carelessly and negligently maintained, and the said grip car was so negligently and carelessly operated that the said iron grip came in contact with some of the machinery or appliances of said street railway underneath the ground, and caused said train of cars to come to a sudden and violent stop, whereby the said plaintiff was, with great force and violence, thrown forward from her seat against the apron or dashboard of said car, the force or violence thereof being so great that she rebounded and struck the back of the seat, on which she had been seated, with great force and violence, whereby her face, shoulders, breast, arms, side, back, chest and hips were greatly injured, bruised and wounded, internally and externally, causing her to faint and become unconscious for a time; that she was severely injured in the lower part of the sides and abdomen, internally and externally; and her womb, ovaries and surrounding parts were wounded and injured, causing painful menstruation, great nervous exhaustion, chronic headaches and sinking spells; that on account of said injuries aforesaid, she has suffered, " etc.
It will be observed that after specifying different acts of negligence, the petition then states the injury resulting and then again specifies acts of negligence, some of the latter being, perhaps, repetitions of the former. These allegations constitute specific charges as distinguished from a general charge and the case must be judged from that...
To continue reading
Request your trial